Though the PM and whips have been in a tizz about Nigel Mills’ amendment to the Immigration Bill, it’s Dominic Raab’s call to narrow the grounds for appeal in the deportation of foreign criminals that could cause real problems in tomorrow afternoon’s debate. There is a chance that it could pass, while the Mills amendment can just be notched up as an embarrassing rebellion.
But do ministers really need to reject the amendment at all? In March, Theresa May told the Prime Minister that the same clause, originally tacked to the Crime and Courts Bill, ‘would be incompatible with the ECHR and counter-productive’ because the European Court of Human Rights would ‘most probably issue a rule 39 injunction’ that prevented deportation until the issue was resolved by the Court.
But I’ve been passed a memo written by the Home Office team working on the Immigration Bill that suggests the objection based on these rule 39 injunctions is unfounded. It says:
‘On whether we are likely to routinely get Rule 39 interim measures for non-suspensive appeals, based on the fact that such measures are rare in A8 cases (and increasingly rare in other cases) we think it unlikely. We are relying, in particular, on paragraph 83 of the recent judgment in Riberio v France which states that a non-suspensive remedy is not imperative in A8 cases.
‘Judicial review will be available to test whether removal pending appeal would cause “serious irreversible harm” but we do not expect interim measures under Rule 39 to be issued routinely, if at all.’
There is a chance that ministers may be able to amend the amendment (such is the confusing way the Commons works) to make it acceptable. Their own advice seems to suggest that this isn’t an impossible proposition.